Exhibit 10.11


 


AFFILIATE GUARANTY

[US AFFILIATE]


 


This Affiliate Guaranty (the “Guaranty”)
is made as of the 30th day of June, 2004 by ADVANCED BEVERAGE
SOLUTIONS, LLC, a limited liability company organized under the laws of the
State of Illinois (the “Guarantor”), in favor of THE FROST NATIONAL
BANK, a national banking association and its successors and assigns, as agent
(the “Agent”) for the equal and ratable benefit of the banks and other
financial institutions listed on the signature pages of and any other bank or
financial institution that may hereafter become a party to the hereinafter
described Credit Agreement in accordance with the terms thereof (hereinafter
collectively referred to as the “Banks”).


 


PRELIMINARY STATEMENT


 


1.             The
Banks have entered into the Amended and Restated Credit Agreement of even date
herewith (as it may hereafter be amended or otherwise modified from time to
time, the “Credit Agreement”) with LANCER PARTNERSHIP, LTD., a Texas
limited partnership (“Operating Subsidiary”), LANCER DE MEXICO, S.A. de
C.V., formerly known as NUEVA DISTRIBUIDORA LANCERMEX, S.A. de C.V., a sociedad
anónima de capital variable organized under the laws of the United
Mexican States (“Mexico Subsidiary”) (Operating Subsidiary and Mexico
Subsidiary being hereinafter referred to individually as a “Borrower”
and collectively as “Borrowers”), LANCER CORPORATION, a Texas
corporation (“Parent Company”), LANCER CAPITAL CORPORATION, a Delaware
corporation, LANCER INTERNATIONAL SALES, INC., a Texas corporation, SERVICIOS
LANCERMEX, S.A. de C.V., a sociedad anónima de capital variable organized
under the laws of the United Mexican States, INDUSTRIAS LANCERMEX, S.A. de
C.V., a sociedad
anónima de capital variable organized under the laws of the United
Mexican States, and Guarantor.  The
Guarantor is an Affiliate of Operating Subsidiary and Mexico Subsidiary and a
Subsidiary of Parent Company.  The
Guarantor will derive substantial benefit, whether directly or indirectly, from
the making of the Loans by the Banks to Operating Subsidiary and Mexico
Subsidiary pursuant to the terms and conditions set forth in the Credit
Agreement.  It is a condition precedent
to the making of the Loans by the Banks under the Credit Agreement that the
Guarantor shall have executed and delivered this Guaranty.  Unless otherwise defined herein, the
capitalized terms used herein which are defined in the Credit Agreement shall
have the meanings specified therein.


 


NOW, THEREFORE, in consideration of the
premises and other good and valuable consideration, the adequacy, receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as
follows:


 


SECTION 1.  Guaranty.  Subject to Section 22 hereof, the
Guarantor hereby unconditionally and irrevocably (a) guarantees the punctual
payment when due (following any applicable grace period or opportunity to
cure), whether at stated maturity, by acceleration, by prepayment or otherwise,
of all obligations to the Agent and the Banks now or hereafter existing under
the Credit Agreement, the Notes and all other Loan Documents, whether for
principal, interest, prepayment premium, fees, expenses, taxes, costs, losses,
compensation, reimbursements or any other amount payable to the Agent and the
Banks under the terms of the Credit Agreement, the Notes and the other Loan
Documents; and (b) agrees to pay any and all


 


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expenses (including, without
limitation, reasonable counsel fees and expenses) incurred by the Agent and the
Banks in enforcing any rights under this Guaranty (all of the above being
hereinafter called the “Obligations”).


 


SECTION 2.  Guaranty Absolute.  The Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of the Credit
Agreement, the Notes and all other Loan Documents (subject to any applicable
grace period or opportunity to cure), regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Banks with respect thereto.  The liability of the Guarantor under this
Guaranty shall be absolute and unconditional irrespective of:


 


(a)           any
lack of validity or enforceability of or defect or deficiency in the Credit
Agreement, the Notes, or any of the other Loan Documents;


 


(b)           any
change in the time, manner, terms or place of payment of, or in any other term
of, all or any of the Obligations, or any other amendment or waiver of or any
consent to departure from the Credit Agreement, the Notes, or any of the other
Loan Documents;


 


(c)           any
sale, exchange, release or non-perfection of any property standing as security
for the liabilities hereby guaranteed or any liabilities incurred directly or
indirectly hereunder or any set-off against any of said liabilities, or any
release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Obligations;


 


(d)           any
change in the existence, structure or ownership of the Guarantor or any other
Company, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting such Company or such Company’s assets;


 


(e)           the
existence of any claim, set-off or other rights which the Guarantor may have at
any time against any other Company, the holder or holders of the Notes or any
other Person, whether or not arising in connection with this Guaranty, the
Credit Agreement, the Notes or any other Loan Document; provided that nothing
contained herein shall prevent the assertion of any such claim by separate suit
or compulsory counterclaim;


 


(f)            failure,
omission, delay, neglect, refusal or lack of diligence by any Bank or the Agent
or any other Person to assert, enforce, give notice of intent to exercise, or
any other notice with respect to, or exercise any right, privilege, power or
remedy conferred on any Bank or the Agent or any other Person in any of the
Loan Documents or by law or action on the part of any Bank or the Agent or any
other Person granting indulgence, grace, adjustment, forbearance or extension
of any kind to Guarantor, any other Company or any other Person;


 


(g)           release,
surrender, exchange, subordination or loss of any security or lien priority
under any of the Loan Documents or in connection with the Obligations;


 


(h)           release,
modification or waiver of, or failure, omission, delay, neglect, refusal or
lack of diligence to enforce, any guaranty, pledge, mortgage, deed of trust,
security agreement, lien, charge, insurance agreement, bond, letter of credit
or other security device, guaranty, surety or indemnity agreement whatsoever;


 


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(i)            failure
by any Bank, the Agent or any other Person to notify, or timely notify, the
Guarantor of any default, event of default or similar event (however
denominated) under any of the Loan Documents, any renewal, extension,
supplementing, modification, rearrangement, amendment, restatement,
replacement, cancellation, rescission, revocation or reinstatement (whether or
not material) or assignment of any part of the Obligations, release or exchange
of any security, any other action taken or not taken by any Bank or the Agent
against the Guarantor, any other Company or any other Person or any direct or
indirect security for any part of the Obligations, any new agreement between
any Bank or the Agent and any other Company or any other Person or any other
event or circumstance.  Except as
required by applicable law or as otherwise provided in the Loan Documents,
neither the Agent nor any Bank has any duty or obligation to give the Guarantor
(in its capacity as a guarantor hereunder) any notice of any kind under any
circumstances whatsoever with respect to or in connection with the Obligations
or the Loan Documents; or


 


(j)            any
other circumstance which might otherwise constitute a defense available to, or
a discharge of any other Company or any other Person (including any guarantor)
in respect of the Obligations, other than payment in full of the Obligations.


 


This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Obligations is annulled,
set aside, invalidated, declared to be fraudulent or preferential, rescinded or
must otherwise be returned, refunded or repaid by the Banks or the proceeds of
collateral are required to be returned by the Banks upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any other Company, or
upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, any other Company or any substantial part
of such Company’s respective property or otherwise, all as though such payment
or payments had not been made.  The
obligations of the Guarantor under this Guaranty shall not be subject to
reduction, termination or other impairment by reason of any setoff, recoupment,
counterclaim or defense or for any other reason.


 


SECTION 3.  Continuing
Guaranty.  This is a continuing
Guaranty, and all extensions of credit and financial accommodations heretofore,
concurrently herewith or hereafter made by the Banks and the Agent to either
Borrower and all indebtedness of either Borrower now owned or hereafter
acquired by the Banks and the Agent in connection with the transactions
contemplated under the Credit Agreement shall be conclusively presumed to have
been made or acquired in acceptance hereof.


 


SECTION 4.  Waiver.  This is an absolute Guaranty of payment and
not of collection, and the Guarantor hereby waives (a) promptness, diligence,
notice of acceptance, presentment, demand, protest, notice of protest and
dishonor, notice of intent to accelerate, notice of acceleration and any other
notice with respect to any of the Obligations and this Guaranty; and (b) any
requirement that the Agent or any Bank protect, secure, perfect or insure any
security interest or Lien on any property subject thereto or exhaust any right
or take any action against any other Company or any other Person or any
Collateral or that any other Company or any other Person be joined in any
action hereunder.  Should the Agent or
any Bank seek to enforce the obligations of the Guarantor hereunder by action
in any court, the Guarantor waives any necessity, substantive or procedural,
that a judgment previously be rendered against any Borrower or any other
Person, or that any action be brought against any other Company or any


 


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other Person, or that any other
Company or any other Person should be joined in such cause.  Such waiver shall be without prejudice to
the Agent or any Bank at their option to proceed against any other Company or
any other Person, whether by separate action or by joinder.


 


SECTION 5.  Several
Obligations.  The obligations of the
Guarantor hereunder are several from any other Company or any other Person, and
are primary obligations concerning which the Guarantor is the principal
obligor.  The Guarantor agrees that this
Guaranty shall not be discharged except by complete performance of the
Obligations of Borrowers under the Notes, the Credit Agreement and the other
Loan Documents and the obligations of the Guarantor hereunder.  The obligations of the Guarantor hereunder
shall not be affected in any way by any receivership, insolvency, bankruptcy or
other proceedings affecting any other Company or any other Person or any of
such Company’s or such Person’s assets, or the release or discharge of any
other Company or any other Person from the performance of any obligation
contained in any promissory note or other instrument issued in connection with,
evidencing or securing any indebtedness guaranteed by this instrument, whether
occurring by reason of law or any other cause, whether similar or dissimilar to
the foregoing.


 


SECTION 6.  Subrogation.  The Guarantor will not exercise any rights
which it may acquire by way of subrogation under this Guaranty, by any payment
made hereunder or otherwise, until the termination of the obligations of the
Banks to make Loans or issue Letters of Credit under the Credit Agreement and
the indefeasible payment in full thereafter of all the Obligations.  If any amount shall be paid to the Guarantor
on account of such subrogation rights at any time when the Banks are obligated
to make Loans or issue Letters of Credit under the Credit Agreement or when all
the Obligations shall not have been indefeasibly paid in full, such amount
shall be held in trust for the benefit of the Banks and shall forthwith be paid
to the Agent to be applied to the Obligations in such order as the Agent shall
select.  If (a) the Guarantor shall make
payment to the Agent of all or any part of the Obligations; and (b) the
obligations of the Banks to make Loans or issue Letters of Credit under the
Credit Agreement shall be terminated and all of the Obligations shall be paid
in full thereafter, the Agent will, at the Guarantor’s request, execute and
deliver to the Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation
to the Guarantor of any interest in the Obligations resulting from such payment
by the Guarantor.


 


SECTION 7.  Subordination of
Borrowers’ Obligations to the Guarantor. 
The Guarantor agrees that if, for any reason whatsoever, any Borrower
now or hereafter owes any indebtedness, directly or indirectly, to the
Guarantor, or the Guarantor now or hereafter owes any indebtedness, directly or
indirectly, to any other guarantor of the Obligations, all such indebtedness,
together with all interest thereon and fees and other charges in connection
therewith, and all Liens securing any such indebtedness shall at all times be
second, subordinate and inferior in right of payment, in lien priority and in
all other respects to the Obligations and the fulfillment of any of the
Guarantor’s obligations hereunder or under any of the other Loan Documents.  The provisions of this Section 7 are
in addition to, and cumulative of, any other provisions contained in any other
Loan Document or other document, instrument or writing.


 


SECTION 8.  Stay of
Acceleration.  If acceleration of
the time for payment of any amount payable by any Borrower under the Credit
Agreement or the Notes is stayed upon the insolvency, bankruptcy or
reorganization of such Borrower, all such amounts otherwise subject


 


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to acceleration under the terms
of the Credit Agreement shall nonetheless be payable by the Guarantor hereunder
forthwith on demand by the holder or holders of the Notes.  The Guarantor’s Obligations under this
Guaranty shall not be limited by any valuation, estimation or disallowance made
in connection with any proceedings filed under the United States Bankruptcy
Code.


 


SECTION 9.  Representations
and Warranties.  The Guarantor
hereby represents and warrants as follows:


 


(a)           This
Guaranty is, and all other documents and instruments executed in connection
herewith when delivered will be, legal, valid and binding obligations of the
Guarantor, enforceable against the Guarantor in accordance with their
respective terms, except as such enforceability may be (i) limited by the
effect of any Debtor Laws; and (ii) subject to the effect of general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).


 


(b)           Upon
giving effect to (a) the execution of this Guaranty; and (b) the consummation of
the transactions contemplated under this Guaranty, the following are true and
correct after diligent investigation:


 


(i)            The fair saleable value of the assets of
the Guarantor exceeds the amount that will be required to be paid on or in
respect of the existing debts and other liabilities (including, without
limitation, pending or overtly threatened litigation in amounts in excess of
effective insurance coverage and all other contingent liabilities) of the
Guarantor as they mature.


 


(ii)           The assets of the Guarantor do not
constitute unreasonably small capital for the Guarantor to carry out its
business as now conducted and as proposed to be conducted including the capital
needs of the Guarantor, taking into account the particular capital requirements
of the business conducted by the Guarantor, and projected capital requirements
and capital availability thereof.


 


(iii)          The Guarantor does not intend to incur debts
beyond its ability to pay such debts as they mature (taking into account the
timing and amounts of cash to be received by the Guarantor, and of amounts to
be payable on or in respect of debt of the Guarantor).


 


(iv)          The fair saleable value of the assets of the
Guarantor is greater than the total fair value of the liabilities, including
contingent, subordinated, absolute, fixed, matured or unmatured, and liquidated
or unliquidated liabilities, of the Guarantor.


 


(c)           The
Guarantor has determined that its liability and obligation under this Guaranty
may reasonably be expected to substantially benefit it directly or indirectly,
and its board of directors has made that determination.  Borrowers and the Guarantor are mutually
dependent on each other in the conduct of their respective businesses and are,
and do business together with the other Companies as, an integrated business
enterprise involved in the designing, engineering, manufacturing and marketing
of fountain soft drink dispensing systems and citrus beverage dispensing
systems.  The maintenance and
improvement of each Borrower’s financial condition is vital to sustaining the
Guarantor’s business and the transactions contemplated in the Credit


 


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Agreement produce distinct and
identifiable financial and economic direct or indirect benefits to the Guarantor.  Such identifiable benefits include the
general improvement of the Guarantor’s financial and economic condition.  The Guarantor has had full and complete
access to the Loan Documents and all other papers executed by Borrowers, Parent
Company or any other Person in connection with the Obligations, has reviewed
them and is fully aware of the meaning and effect of their contents.  The Guarantor is fully informed of all
circumstances which bear upon the risks of executing this Guaranty and which a
diligent inquiry would reveal.  It has
adequate means to obtain from Parent Company on a continuing basis information
concerning the financial condition of the Companies, and is not depending on
the Agent or any Bank to provide such information, now or in the future.  It agrees that neither the Agent nor any
Bank shall have an obligation to advise or notify it or to provide it with any
such data or information.  The execution
and delivery of this Guaranty is not a condition precedent (and neither the
Agent nor any Bank has in any way implied that the execution of this Guaranty
is a condition precedent) to the Agent’s or any Bank’s making, extending or
modifying any loan or any other financial accommodation to or for the
Guarantor.


 


(d)           No
bankruptcy or insolvency proceedings are pending or contemplated by or against
the Guarantor.


 


SECTION 10.  Amendments, Etc.  No amendment or waiver of any provision of
this Guaranty nor consent to any departure by the Guarantor therefrom shall in
any event be effective unless the same shall be in writing and signed by the
Banks and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however,
that no amendment, waiver or consent shall, unless in writing and signed by all
of the Banks, limit the liability of the Guarantor hereunder.


 


SECTION 11.  Notices, Etc.  All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telex,
facsimile or cable communication) and mailed, telegraphed, telexed,
transmitted, cabled or delivered, if to the Guarantor, at the address for the
Guarantor set forth on the signature page hereof; if to the Agent or any Bank,
at the address for the Agent or such Bank (as the case may be) set forth in the
Credit Agreement, or, as to each party, at such other address as shall be
designated by such party in a written notice to the other party.  All such notices and communications shall,
when mailed, telegraphed, telexed, transmitted or cabled be effective when
deposited in the mail, delivered to the telegraph company, confirmed by telex
answerback, transmitted by telecopier or delivered to the cable company,
respectively.


 


SECTION 12.  No Waiver,
Remedies.  No failure on the part of
the Agent or any Bank to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right.  The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.


 


SECTION 13.  Right of Set-Off.  Upon the occurrence and during the
continuance of any Event of Default, the Banks are hereby authorized at any
time and from time to time, without notice to the Guarantor (any such notice
being expressly waived by the Guarantor) to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or


 


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demand, provisional or final)
at any time held and other indebtedness at any time owing by any Bank to or for
the credit or the account of the Guarantor against any and all of the
obligations of the Guarantor now or hereafter existing under this Guaranty,
irrespective of whether or not any Bank shall have made any demand under this
Guaranty and although such obligations may be contingent and unmatured.  Each Bank agrees promptly to notify the
Guarantor after any such set-off and application made by such Bank; provided
that the failure to give such notice shall not affect the validity of such
set-off and application.  The rights of
the Banks under this Section 13 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Banks may have.


 


SECTION 14.  Costs, Expenses
and Taxes.  The Guarantor agrees to
pay, and cause to be paid, the costs and expenses of the Agent and the Banks
that are set forth in Section 10.3 of the Credit Agreement in the manner
set forth in Section 10.3 of the Credit Agreement.  The Guarantor agrees to pay interest on any
expenses or other sums due to the Agent and the Banks thereunder that are not
paid when due (following any applicable grace period or opportunity to cure) at
the Default Rate.  In addition, subject
to Section 10.8 of the Credit Agreement, the Guarantor shall pay any and
all stamp and other taxes payable or determined to be payable in connection
with the execution and delivery of this Guaranty and any of the documents or
instruments evidencing the Obligations, and agrees to save the Agent and the
Banks harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes.  The agreements of the Guarantor contained in
this Section 14 shall survive the payment of all other amounts owing
hereunder or under any of the other Obligations.


 


SECTION 15.  Indemnity.  To the fullest extent permitted by law and
subject to Section 10.8 of the Credit Agreement, the Guarantor agrees to
indemnify the Agent and the Banks and their respective officers, directors,
employees, agents, attorneys and other professionals and consultants, insurers
and stockholders, and each of them, in the manner set forth in Section 10.4
of the Credit Agreement.


 


SECTION 16.  Separability.  Should any clause, sentence, paragraph,
subsection or Section of this Guaranty be judicially declared to be invalid,
unenforceable or void, such decision will not have the effect of invalidating
or voiding the remainder of this Guaranty, and the parties hereto agree that
the part or parts of this Guaranty so held to be invalid, unenforceable or void
will be deemed to have been stricken herefrom and the remainder will have the
same force and effectiveness as if such part or parts had never been included
herein.


 


SECTION 17.  Captions.  The captions in this Guaranty have been
inserted for convenience only and shall be given no substantive meaning or
significance whatever in construing the terms and provisions of this Guaranty.


 


SECTION 18.  Continuing
Guaranty; Transfer of the Notes. 
This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the termination of the obligations of the Banks to make
Loans or issue Letters of Credit under the Credit Agreement and the
indefeasible payment in full thereafter of the Obligations; (b) be binding upon
the Guarantor, its successors and assigns; and (c) inure to the benefit of and
be enforceable by the Agent and the Banks and their respective successors,
transferees and assigns.  Without
limiting the generality of the foregoing clause (c), the Agent and the Banks
may assign or otherwise


 


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transfer the Notes to any other
Person or entity in accordance with the terms and provisions set forth in Section
10.7 of the Credit Agreement, and such other Person or entity shall
thereupon become vested with all the rights and benefits in respect thereof
granted to the Agent and the Banks herein or otherwise.


 


SECTION 19.  Limitation by
Law.  All rights, remedies and
powers provided in this Guaranty may be exercised only to the extent that the
exercise thereof does not violate any applicable provision of law, and all the
provisions of this Guaranty are intended to be subject to all applicable
mandatory provisions of law which may be controlling and to be limited to the
extent necessary so that they will not render this Guaranty invalid,
unenforceable, in whole or in part, or not entitled to be recorded, registered
or filed under the provisions of any applicable law.


 


SECTION 20.  Survival of
Representations and Warranties.  All
representations and warranties contained in this Guaranty or made in writing by
or on behalf of the Guarantor in connection herewith, shall survive the
execution and delivery of this Guaranty. 
Any investigation by the Agent or any Bank shall not diminish in any
respect whatsoever its right to rely on such representations and warranties.


 


SECTION 21.  Governing Law;
Submission to Jurisdiction.  THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO ANY
CONFLICTS OF LAW PRINCIPLES).  THE
PARTIES EXPRESSLY ACKNOWLEDGE THAT (I) THEY INTEND THAT THIS AGREEMENT AND EACH
NOTE SHALL BE GOVERNED BY THE PROVISIONS (INCLUDING, WITHOUT LIMITATION, THE
RIGHT OF THE PARTIES TO SELECT THE GOVERNING LAW) OF THE UNIFORM COMMERCIAL
CODE AND NOT BY COMMON LAW; AND (II) THE STATE OF TEXAS BEARS A REASONABLE
RELATIONSHIP TO THIS TRANSACTION AND NO OTHER STATE HAS A MATERIALLY GREATER
INTEREST IN THIS TRANSACTION THAN THE STATE OF TEXAS.  THE GUARANTOR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AND OF ANY
TEXAS STATE COURT SITTING IN TEXAS FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


SECTION 22.  Limitation on
Guaranteed Amount.  Any other
provision of this Guaranty notwithstanding, the amount guaranteed by the
Guarantor hereunder shall be limited to the extent, if any, required so that
its obligations under this Guaranty shall not be subject to avoidance under
Section 548 of the United States Bankruptcy Code or to being set aside or
annulled under any applicable state law relating to fraud on creditors.  In determining the limitations, if any, on
the amount of the Guarantor’s obligations hereunder pursuant to the preceding
sentence, any rights of subrogation or contribution which the Guarantor may
have under this Guaranty or applicable law shall be taken into account.


 


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IN WITNESS WHEREOF,
the Guarantor has caused this Guaranty to be duly executed by its respective
officer thereunto duly authorized, as of the date first above written.


 


	
   

  	
  ADVANCED BEVERAGE SOLUTIONS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott Adams

  
	
   

  	
  Name:

  	
  Scott Adams

  
	
   

  	
  Title:

  	
  Secretary

  
					



 


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